Northern Territory Second Reading Speeches

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CRIMINAL CODE AMENDMENT (CHILD ABUSE MATERIAL) BILL 2004


Dr TOYNE (Justice and Attorney-General): Madam Speaker, I move that the bill be now read a second time.

The purpose of this bill is to amend the Criminal Code Act with regard to the possession, distribution and sale of child pornography and the use of children for the production of child pornography.

All members are well aware of the police operation culminating in numerous arrests in the Territory and approximately 200 people being charged nationwide in Australia’s biggest crackdown on child pornography, and as part of a worldwide operation last week.

The timing of this legislation is coincidental. However, given the recent events, the government has taken the decision to seek the cooperation of parliament in passing this legislation through all stages in the current sittings. Whilst we do not pretend passage and commencement will impact on offenders already apprehended by police and yet to face the courts, the ongoing nature of the investigations and the sheer numbers involved means that we as the parliament and as a community have an obligation to pass this legislation as soon as possible.

The need to overhaul the provisions in the Criminal Code regarding child pornography has become evident in recent times to police, prosectors, the judiciary and government. Most child pornography is now promoted and distributed by Internet or e-mail, and stored as data on a computer or data storage devices such as CDs. The existing provisions in the code regarding child pornography were drafted prior to the everyday use of computers and the Internet, and they are not as effective as they could be in prosecuting offences in the current context.

The bill takes a different approach to criminal offences in relation to material that depicts children in a sexual manner or context. There is increasing recognition of the links between the use of such materials and the sexual abuse of children. Children are harmed in the production of this material, but the material is also used to promote and support sexual interest in children and to groom children for the purposes of abusing them.

The bill, if passed, will provide a more effective way of preventing the use and distribution of this material and contribute to the prevention of child sexual abuse. The bill introduces a new concept of child abuse material to replace the existing definition of child pornography in the Criminal Code. Child abuse material includes material that depicts, describes or represents in a manner that is likely to cause offence to a reasonable adult, a person who is a child or appears to be a child engaged in sexual activity, or in a sexually offensive or demeaning context, or being subjected to torture, abuse or cruelty.

The definition is broad enough to capture material that represents children in cartoons and computer-generated representation of children. The definition also extends to data from which images, text or sound may be generated. This means that a person may be found guilty of an offence when they are found to have been in possession of a computer or storage device that contains data that can be used to generate images, text or sound that fall within the definition of child abuse material.

The definition of child abuse material includes material that depicts children who appear to be under the age of 18 years. Currently, child pornography only covers children up to the age of 16 years. This change will bring the Northern Territory legislation into line with the requirements of the optional protocol to the Convention on the Rights of the Child and the sale of children, child prostitution and child pornography. State and territory ministers agreed at the March 2004 meeting of the Standing Committee of Attorneys-General to introduce any necessary amendments to ensure that the state and territory legislation complies with this protocol.

The bill will repeal the existing offences in relation to child pornography and replace them with a single offence that covers possession, distribution or sale of child abuse material. The maximum penalty for this new offence is 10 years imprisonment for an individual, and 10 000 penalty units for a corporation. This is a significant increase in penalties from the existing offences and is meant to provide the courts with sufficient discretion to impose a penalty that is commensurate with the amount and nature of material that is the subject of the prosecution.

The increase in penalty also recognises the link between possession of material that depicts children in a sexual manner and the commission of sexual offences against children. The offence is intended to be offender-based, so that in cases where an offender is found with more than one item or image, only one count will be brought against them. The current provisions in the code require a charge in relation to each item or image. Where hundreds of thousands of images are found, the administration of prosecutions is complex and time consuming.

The bill also seeks to introduce an evidentiary presumption to overcome problems where material is found stored on a computer or data storage device, and the accused claims that they accidentally downloaded the material, or that another person had access to their computer. The presumption is modelled on the existing one in the Misuse of Drugs Act in relation to possession of drugs. While this presumption may be broad enough to include Internet service providers, ISPs, who are involved in the management or control of Internet services used by other people to distribute or store child abuse material, it is only intended to apply to those providers who are aware or reasonably suspect that their service is being used for this purpose.

The bill also introduces changes in relation to the use of certificates issued by the Commonwealth Classification Board. Currently, under the code, a prosecution cannot be commenced until the material the subject of the proceedings has been classified. This is time consuming and expensive and can lead to delays in the prosecution of offences. The new definition of child abuse material does not require a classification for a prosecution, but the bill retains an option for the prosecution to obtain a certificate from the Classification Board certifying that a film, publication or computer game is classified RC on the basis that it, prima facie, depicts child abuse material.

The bill also introduces a new offence of using a child for the production of child abuse material. This will carry a maximum penalty of 14 years for an individual and, in the case of a corporation, 15 000 penalty units. This provision will implement obligations under the International Labour Organisation convention on the worst forms of child labour, the ILO 182. This convention defines worst forms of child labour to include the use and the procuring or offering of a child for the production of child pornography. The existing provisions in the code do not adequately provide for offences in relation to these activities.

The bill also seeks to repeal some defences that are currently available to child pornography offences. These defences are available when an accused did not know or could not have reasonably known that the material was classified RC, or would be classified RC, or where the person depicted in the material is actually over the age of 16 years. The first defence will be redundant because of the new proposed definition of child abuse material. The second defence has caused difficulty, as it is often difficult to prove that a child depicted in an image is under a particular age, due to the international nature of the traffic in pornography and the use of technology to produce images. The actual age of the person depicted is immaterial if the person appears to be or is depicted as a child, since it is the appearance of the person depicted that motivates offenders.

The proposed new provision in relation to forfeiture will permit the retention and destruction of material and other items seized at the same time as the child abuse material following a conviction.

The proposed provision in relation to court proceedings has been developed because it is increasingly common for the material the subject of prosecution to be displayed or played in court rather than reduced to multiple hard copies. This approach is preferred because, in some cases, the material consists of moving images and it is preferable not to make multiple copies of the material which is then left on files and distribution of the material for the purposes of prosecution is, therefore, limited. This is consistent with the criminalisation of the possession of this material. In these cases, it is appropriate that the court is closed while the material is displayed.

This is important and timely legislation that deserves urgent passage, Madam Speaker. I commend the bill to honourable members.

Debate adjourned.

 

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